White House Releases Outline for Legislative Infrastructure Plan

On February 12, 2018, the White House issued its proposed framework for an infrastructure bill to Congress. Notably, the White House’s infrastructure plan proposes to (1) establish a firm deadline of 21 months for lead agencies to complete their National Environmental Policy Act (“NEPA”) reviews and an additional 3 months thereafter to approve or deny a permit (i.e., a decision on an interstate natural gas pipeline project or hydropower license application must be made within 2 years of the application); and (2) amend the Clean Water Act (“CWA”) to set a deadline for a state agency to determine whether a CWA section 401 certificate application is complete.

The infrastructure plan, titled “Legislative Outline for Rebuilding Infrastructure in America,” provides a framework for a bill with four key components: (1) funding and financing infrastructure improvements; (2) provisions for road transportation, water infrastructure, veterans affairs property, and land revitalization improvements; (3) infrastructure permitting improvements; and (4) workforce development. In the proposal, the White House asks Congress to quickly act on an infrastructure bill that would “stimulate at least $1.5 trillion in new investment over the next 10 years, shorten the process for approving projects to 2 years or less, address unmet rural infrastructure needs, empower State and local authorities, and train the American workforce of the future.”

Of note, the White House proposes to streamline the NEPA process, including FERC’s environmental reviews of applications for interstate natural gas pipeline projects and hydropower licenses. With respect to NEPA reviews, the White House proposes to, among other things:

• Establish a firm deadline of 21 months for lead agencies to complete their NEPA reviews;

• Establish a deadline of 3 months after the NEPA review for the agency to approve or deny the project. This 3-month deadline would also apply to permits issued by state agencies acting pursuant to delegated authority. The plan adds that “[a]ppropriate enforcement mechanisms would be established to ensure that permit decisions are issued”;

• Clarify that an agency is not required to consider alternatives that are outside its jurisdiction during the NEPA review; and

• Require the Council on Environmental Quality to revise its regulations to streamline the NEPA process.

The White House also proposes to amend the CWA to set a deadline for state agencies to determine whether an application for a CWA section 401 certificate is complete and to clarify the deadline for a state decision on the application. In doing so, the White House notes that states currently have up to 1 year to act on an application, or the requirement is waived. The White House continues, however, that states often fail to act within the 1-year period or require applicants to re-file a more complete application prior to the 1-year deadline, “which produces a loop of repeated lack of issuance and re-filing.”

The White House concludes that its infrastructure plan “will strengthen the economy, make our country more competitive, reduce the costs of goods and services for American families, and enable Americans to build their lives on top of the best infrastructure in the world.”

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